In Re the Adoption of J.M.U.

Pierron, J.:

This is an appeal by Victoria Elder from the trial court’s denial of her request for visitation rights with J.M.U., Elder’s deceased son’s unmarried minor child, after J.M.U. was adopted by maternal relatives following the death of her parents.

J.M.U. was born on February 20, 1989, to Santiago Urquieta and Robin Lee Kilpatrick. On April 12, 1989, when J.M.U. was not yet two months old, Santiago killed Robin and took his own life. Kimberly Spunaugle, Robin’s sister, took J.M.U. into her care immediately after the double tragedy.

On May 2, 1989, Wanda West, J.M.U.’s maternal grandmother, was appointed to serve as J.M.U.’s guardian. West agreed to Elder’s entitlement to and exercise of visitation rights with J.M.U. J.M.U. was adopted by Kimberly and her husband, Scott Spunaugle, on September 8, 1989. After the adoption, the Spunaugles did not allow Elder to visit J.M.U. Elder instituted this proceeding by filing a petition seeking visitation rights with J.M.U. The trial court, finding no statutory authority to support Elder’s request, denied the request.

We are confronted with the question of whether a parent of a deceased parent of an unmarried minor child is entitled to visitation rights with the child after the child’s adoption by a third party:.

*165In this case, whether the sought-after visitation would be in the best interests of the child and whether there is a substantial relationship between the child and her grandparent are questions the trial court conscientiously considered and answered in the affirmative. Those findings are not challenged on appeal.

We disagree with the trial court’s finding that Elder is not entitled to visitation rights with J.M.U. and reverse.

In Browning v. Tarwater, 215 Kan. 501, 524 P.2d 1135 (1974), our Supreme Court was faced with the question of whether a paternal grandmother was entitled to the right of visitation with her deceased son’s child after the child was adopted by the child’s stepfather. The Supreme Court denied the right of visitation.

The version of K.S.A. 38-129 that applied in Browning provided:

“If either the father or mother of an unmarried minor child is deceased, the parents of such deceased person may be granted reasonable visitation rights to the minor child during its minority by the district court upon a finding that such visitation rights would be in the best interests of the minor child.” K.S.A. 1971 Supp. 38-129.

The version of K.S.A. 59-2103 that then applied provided:

“Any [adopted child] . . . shall be entitled to the same rights of person and property as a natural child of the person . . . adopting the child. The person . . . adopting such child shall be entitled to exercise all the rights of a natural parent and be subject to all the liabilities of that relation. Upon . . . adoption all rights of natural parents to the adopted child . . . shall cease, except the rights of a natural parent who is the spouse of the adopting parent.” K.S.A. 1971 Supp. 59-2103.

In Browning, a paternal grandmother, Tarwater, had obtained a district court order granting her visitation rights with her deceased son’s child. The case came before the Supreme Court on an appeal by the child’s mother from the trial court’s denial of the child’s mother’s motion for termination of Tarwater’s right of visitation. After the child’s father’s death, the child’s mother had remarried and the child was adopted by the stepfather. Over a strong and eloquent dissent by Justice Fontron, the Supreme Court reversed the trial court’s refusal to terminate Tarwater’s ordered right of visitation.

In arriving at its decision in Browning, the Supreme Court reasoned and held that the adoption of the child by the stepfather *166controlled the disposition of the question. An effect of the adoption was to prohibit the natural paternal grandmother from exercising visitation rights because, by the adoption, the child had a new father and new paternal grandparents. 215 Kan. at 506. Within the Browning majority opinion, it was stated:

“In our opinion K.S.A. 38-129 was not designed by the legislature to overturn the previously established adoption laws of the State of Kansas, but was enacted and intended to apply subject to the adoption laws. In other words, adoption proceedings properly conducted and accomplished under the probate code override 38-129, 38-130 and 38-131.” 215 Kan. at 506.

After Browning, the adoption statute, K.S.A. 59-2103, underwent legislative change. The pertinent part of that statute in effect for the purposes of the case before us reads:

“(b) When adopted, a child shall be entitled to the same personal and property rights as a natural child of the adoptive parent. The adoptive parent shall be entitled to exercise all the rights of a natural parent and be subject to all the liabilities of that relationship. Upon adoption all the rights of natural parents to the adopted child, including their rights to inherit from the child, shall cease, except the rights of a natural parent who is the spouse of the adopting parent.
“(c) If a parent of a child is deceased and the surviving parent’s spouse adopts the child, the parents of the deceased parent may be granted reasonable visitation rights to the child in accordance with K.S.A. 38-129 and amendments thereto.” K.S.A. 59-2103.

Even more significant are the changes that the legislature enacted concerning K.S.A. 38-129 after Browning. In 1982 the statute was amended to read:

“(a) If a parent of an unmarried minor child is deceased, the district court may grant the parents of the deceased person reasonable visitation rights to the minor child during the child’s minority upon a finding that the visitation rights would be in the best interests of the minor child.
“(b) Unless the court finds that the visitation rights are not in the child’s best interests, the district court may grant visitation rights, or enforce visitation rights previously granted, pursuant to this section, even if the surviving parent has remarried and the surviving parent’s spouse has adopted the child. Visitation rights may be granted pursuant to this subsection without regard to whether the adoption of the child occurred before or after the effective date of this act.”

As was the obvious purpose of the new subsection (c) of K.S.A. 59-2103, new subsection (b) of the 1982 version of K.S.A. 38-129 *167was intended to specifically overrule Browning. No wider purpose need be assumed.

In 1984 the present form of K.S.A. 38-129 was enacted, which reads:

“(a) The district court may grant the grandparents of an unmarried minor child reasonable visitation rights to the child during the child’s minority upon a finding that the visitation rights would be in the child’s best interests and when a substantial relationship between the child and the grandparent has been established.
“(b) The district court may grant the parents of a deceased person visitation rights, or may enforce visitation rights previously granted, pursuant to this section, even if the surviving parent has remarried and the surviving parent’s spouse has adopted the child. Visitation rights may be granted pursuant to this subsection without regard to whether the adoption of the child occurred before or after the effective date of this act.”

Of greatest importance in the new language is that all restrictions on granting reasonable grandparent visitation are removed save the establishment that it be in the interests of the grandchild and that a substantial relationship between the grandchild and the grandparent has been established.

Subsection (b) of K.S.A. 38-129 provides that the broad new grant of visitation authority can be exercised even if the moving grandparent’s child has died and the surviving parent has remarried and the new spouse has adopted the child. The language is not “only if.”

The purpose of the 1984 changes was not only to overrule Browning. That was accomplished by the 1982 changes.

The obvious expansion of the statutory provisions for grandparent visitation after Browning shows a clear legislative intent to provide for precisely what K.S.A. 38-129(a) orders — grandparent visitation if it is in the child’s best interests and there is a substantial grandparent-grandchild relationship in place. Death, divorce, or adoption are not mentioned as prerequisites.

Although the Supreme Court may have been concerned about unintentional modification of the adoption statutes by the legislature as a basis for the Browning decision, that cannot be a concern now. By specific legislative enactment the law as announced in Browning has been overruled. In addition, the possiblity for grandparent visitation has been unmistakably broadened by the same statute.

*168We acknowledge it can be argued (pursuant to Browning) that K.S.A. 38-129 is not applicable to adoption situations. However, since the question of grandparent visitation after adoption was addressed in K.S.A. 38-129 subsequent to Browning (and seemingly in reaction to Browning), we do not find such argument persuasive.

Further, in 1990 the legislature enacted a modernized adoption code. K.S.A. 1990 Supp. 59-2111 et seq. It eliminated any mention of the question of grandparent visitation following adoption from the adoption code, but left K.S.A. 38-129 intact. This would tend to confirm the view that K.S.A. 38-129 is applicable to adoption situations as it is the only statute specifically concerning grandparent visitation after adoption (or under any other circumstances).

Although Browning, in the absence of any specific legislative pronouncement, abolished grandparent visitation in adoption situations similar to the instant case, specific legislation governing this question is now in place, and in only one place — K.S.A. 38-129.

By specific disapproval of Browning, repeal of K.S.A. 59-2103, and the retention and expansion over the years of K.S.A. 38-129, the legislature has joined Justice Fontron’s position in Browning that the grandparent-grandchild relationship should be fostered where it is in the grandchild’s best interests and the relationship already exists.

Since the trial court found there was a substantial relationship and that visitation was in the best interests of the child, but denied visitation only on the legal grounds we have discussed, we reverse the decision and remand the case to the trial court to order reasonable grandchild-grandparent visitation.

Reversed and remanded.